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14.3 Illegal Confessions or Admissions
A. Involuntary Confessions
B. Miranda Violations
C. Confessions in Violation of Sixth Amendment Right to
Counsel
D. Confession as Fruit of Illegal Arrest
E. Evidence Derived from Illegal Confession
F. Codefendant’s Confession
G. Recording of Statements
____________________________________________________________
14.3 Illegal Confessions or Admissions
The constitutional bases for excluding illegally obtained confessions or admissions are the
Fifth and Sixth Amendments to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, sections 19, 23 and 24, of the North
Carolina Constitution. In addition to the general reference sources cited at the beginning of
this chapter, see Jeff Welty, The Law of Interrogation in North Carolina (UNC School of
Government, June 2012).
A. Involuntary Confessions
Due process is violated when police coerce a suspect into making a confession. Coercion
may include: (i) physical force; (ii) depriving the suspect of food, sleep, or the ability to
communicate with the outside world; or (iii) psychological ploys such as threats or
promises. Because it is so suspect, an involuntary confession is inadmissible for any
purpose, including impeachment. See Mincey v. Arizona, 437 U.S. 385 (1978)
(confession obtained from hospitalized suspect in great pain not voluntary and not
admissible even to impeach); State v. Pruitt, 286 N.C. 442 (1975) (confession made in
response to inducement of hope that defendant would obtain relief from charged offense
not voluntary); State v. Lynch, 271N.C. App. 532 (2020) (reviewing cases and finding
confession involuntary where police promised leniency and defendant was not
predisposed to admit guilt); State v. Bordeaux, 207 N.C. App. 645 (2010) (confession not
voluntary where defendant confessed after officers promised to testify on his behalf,
engendering hope of more lenient punishment, and suggested defendant might still be
able to attend college); compare State v. Wallace, 351 N.C. 481 (2000) (confession not
involuntary where induced by promise that defendant could see his daughter and
girlfriend if he confessed); State v. Cornelius, 219 N.C. App. 329 (2012) (confessions
obtained from hospitalized suspect on medication not involuntary where hospital records
and recorded statements supported findings that suspect was alert and oriented); State v.
Hunter, 208 N.C. App. 506 (2010) (confession not involuntary although the defendant
ingested crack cocaine several hours before interrogation).
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A court must examine the totality of the circumstances in determining whether a
confession is involuntary. See Malloy v. Hogan, 378 U.S. 1 (1964); Bordeaux, 207 N.C.
App. at 655–66 (applying totality of circumstances test and finding confession
involuntary).
B. Miranda Violations
Generally. A defendant may be able to suppress a statement under the authority of
Miranda v. Arizona, 384 U.S. 436 (1966), if he or she gives a statement while in police
custody in response to interrogation and:
• was not adequately given Miranda warnings;
• did not knowingly and voluntarily waive his or her Miranda rights; or
• invoked his or her rights and that invocation was not honored by the police.
Requirements of “custody” and “interrogation.” As a means of protecting the Fifth
Amendment privilege against self-incrimination, a suspect is constitutionally entitled to
receive Miranda warnings if he or she (i) is in police custody, and (ii) is interrogated by
the police.
“Custody” has been defined as either arrest or “a restraint on freedom of movement of the
degree associated with formal arrest.” State v. Buchanan, 353 N.C. 332 (2001)
(disavowing former test for custody of whether reasonable person would feel free to
leave presence of police, the test used under the Fourth Amendment for determining
whether a seizure occurred); see also State v. Waring, 364 N.C. 443 (2010) (defendant
not in custody during initial questioning at police station; officer first told defendant that
he was “being detained” but “was not under arrest” and defendant then voluntarily went
to police station, where he was left alone in unlocked interview room with no guard
posted); State v. Hemphill, 219 N.C. App. 50 (2012) (interrogation was custodial for
Miranda purposes where defendant was chased, forced to ground with taser, and
handcuffed; court finds defendant not prejudiced by failure to suppress statements); State
v. Allen, 200 N.C. App. 709 (2009) (defendant at hospital for treatment was not in
custody to require Miranda warnings when officer questioned him). A person is not
necessarily in custody within the meaning of Miranda when he is in prison and is
removed from the general population for questioning about events that occurred outside
prison. See infra “Interrogation of pretrial detainees and prisoners” in this subsection B.
The age of a child subjected to police questioning is relevant to the Miranda custody
analysis if the child’s age was known to the officer at the time of police questioning
or would have been objectively apparent to a reasonable officer. J.D.B. v. North
Carolina,564 U.S. 261 (2011). The rationale for this holding is that a reasonable child
subjected to police questioning will sometimes feel pressured to submit when a
reasonable adult would feel free to go. While J.D.B. declined to consider factors other
than age, counsel may argue that other personal characteristics, such as low IQ, may
similarly affect a person’s understanding of his or her freedom of action. See State v.
Quick, 226 N.C. App. 541 (2013) (State failed to prove that any waiver of Miranda
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rights was knowing and voluntary where defendant was 18 years old, had limited
experience with the criminal justice system, there was a period of time between 12:39
p.m. and 12:54 p.m. where there is no evidence as to what occurred, and the
interrogation was not recorded).
“Interrogation” is defined as questioning or its functional equivalent—that is, statements
or actions that the officers should have known were reasonably likely to elicit an
incriminating response by the subject. See Rhode Island v. Innis, 446 U.S. 291, 300–02
(1980); State v. Hensley, 201 N.C. App. 607 (2010) (officer’s conduct and statements to
defendant, including saying the conversation was not “on the record,” constituted
interrogation to require Miranda warnings); compare State v. Stover, 200 N.C. App. 506
(2009) (court finds that officer asked defendant why he was hanging out the window to
ascertain circumstances rather than to elicit incriminating response; additional,
unsolicited statements by defendant were not in response to question asked). There is no
violation of the Fifth Amendment when a suspect makes a “spontaneous” statement to
police, not in response to interrogation. See, e.g., State v. Jones, 161 N.C. App. 615
(2003). Factors that are relevant to the determination of whether police interrogated a
suspect, or should have known their conduct was likely to elicit an incriminating
response, include: (1) the intent of the police; (2) whether the practice is designed to elicit
an incriminating response from the accused; and (3) any knowledge the police may have
had concerning the unusual susceptibility of a defendant to a particular form of
persuasion. State v. Fisher, 158 N.C. App. 133 (2003), aff’d per curiam, 358 N.C. 215
(2004); see also State v. Herrera, 195 N.C. App. 181 (2009) (police did not interrogate
suspect by placing call to suspect’s grandmother in Honduras and allowing him to
converse with her on speaker phone in presence of officer and interpreter), rev’d on other
grounds by State v. Ray, 364 N.C. 272 (2010).
Miranda warnings do not apply to a request for consent to search, in part because a
request for consent has been held not to constitute an interrogation under Miranda. See
State v. Cummings, 188 N.C. App. 598 (2008) (defendant’s motion to suppress evidence
seized as a result of consent search of his car denied although officer obtained consent
after defendant had invoked Miranda rights).
Waiver. Before any custodial statement, made in response to police interrogation, is
admissible at trial, the suspect must knowingly and voluntarily waive his or her rights.
See Miranda v. Arizona, 384 U.S. 436 (1966). As a practical matter, law enforcement
officers generally try to obtain an express waiver of rights from a defendant. See FARB
at 578–79 (recommending this practice to officers). An express waiver may not be
necessary, however. See North Carolina v. Butler, 441 U.S. 369 (1979) (so stating).
For example, in Berghuis v. Thompkins, 560 U.S.370 (2010), the Court found that a
suspect who had been given Miranda warnings and had remained largely silent during
a two hour and forty-five minute interrogation waived his rights by responding to a
question. The court did not require an express waiver and found instead that the
uncoerced statement constituted an implied waiver. The suspect’s silence during the
bulk of the interrogation did not invoke his right to remain silent. For additional
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analysis of the Berghuis opinion, see Robert L. Farb, The United States Supreme
Court’s Ruling in Berghuis v. Thompkins (UNC School of Government, June 7, 2010).
Conversely, an express waiver may not be sufficient to show a valid waiver of rights if
other evidence, such as evidence of coercion or lack of understanding, shows that the
defendant did not waive his or her rights knowingly and voluntarily.
Whether a waiver of Miranda rights was knowing and voluntary has been the subject of
numerous cases, too numerous to cover in this manual. See, e.g., State v. Quick, 226 N.C.
App. 541 (2013) (State failed to prove that any waiver of Miranda rights was knowing
and voluntary where defendant was 18 years old, had limited experience with the
criminal justice system, there was a period of time between 12:39 p.m. and 12:54 p.m.
where there is no evidence as to what occurred, and the interrogation was not recorded);
State v. Robinson, 221 N.C. App. 509 (2012) (waiver knowing and voluntary based on
totality of circumstances despite defendant’s limited mental capacity); State v. Bordeaux,
207 N.C. App. 645 (2010) (confession was involuntary where defendant received
Miranda warnings and waived right to remain silent after officers promised to testify on
his behalf, engendering a hope of more lenient punishment, and suggested defendant may
still be able to attend college); State v. Mohamed, 205 N.C. App. 470 (2010) (the
defendant’s English skills sufficiently enabled him to understand Miranda warnings that
were read to him where the defendant complied with officer’s instructions, wrote his
confession in English, and never asked for an interpreter); State v. Nguyen, 178 N.C.
App. 447 (2006) (defendant’s written waiver of Miranda rights knowing and voluntary
where police officer acted as interpreter); State v. Crutchfield, 160 N.C. App. 528 (2003)
(defendant moved to suppress statements made while he was in the hospital and under
medication on the theory that he did not knowingly and voluntarily waive Miranda
rights; denial of motion upheld).
Invocation of right to counsel. If a suspect invokes his or her right to counsel, the
invocation must be honored by police and all in-custody interrogation must stop
regarding all crimes until the suspect is provided with counsel or, as discussed below,
there has been a 14-day break in custody. In-custody questioning may resume before then
only if the suspect asks to talk further with police. See Edwards v. Arizona, 451 U.S. 477
(1981); State v. Torres, 330 N.C. 517 (1992), overruled on other grounds by State v.
Buchanan, 353 N.C. 332 (2001); State v. Quick, 226 N.C. App. 541 (2013) (defendant
did not initiate communication with police after his initial request for counsel and thus
did not waive right to counsel; defendant talked to police only after they told him an
attorney could not help him, which police knew or should have known would be
reasonably likely to elicit an incriminating response); State v. Moses, 205 N.C. App. 629
(2010) (no error to deny defendant’s motion to suppress where defendant initially
invoked his right to counsel and later reinitiated conversation with officer, who again
advised defendant of Miranda rights and obtained a written waiver).
In Edwards, the U.S. Supreme Court established that once a defendant asserts the right
to counsel at a custodial interrogation, an officer may not conduct a custodial
interrogation of the defendant until a lawyer is made available for the interrogation or
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the defendant initiates further communication with the officer. The rationale behind
Edwards was that once the defendant invokes the right to counsel, any subsequent
waiver of the right to counsel and response to police-initiated custodial interrogation is
presumed involuntary. However, in Maryland v. Shatzer, 559 U.S. 98 (2010), the U.S.
Supreme Court announced a new rule—when there is a break in custody for 14 days or
more after a defendant has asserted the right to counsel at a custodial interrogation, an
officer may reinitiate custodial interrogation after giving Miranda warnings and
obtaining a waiver of Miranda rights. A two-week break in custody, according to the
Court, is sufficient to end the inherently compelling pressures of custodial interrogation.
Thus, officers may lawfully approach a defendant, obtain a waiver, and interrogate him
or her, even though the defendant told the officers two weeks earlier that he or she did
not want to talk to them without having a lawyer present. For further discussion of the
impact of Shatzer, see Robert L. Farb, The United States Supreme Court’s Ruling in
Maryland v. Shatzer (UNC School of Government, May 10, 2010). For a discussion of
the impact of Shatzer on questioning of pretrial detainees, see infra “Interrogation of
pretrial detainees and prisoners” in this subsection B.
As a general matter, a request for counsel must be unambiguous to halt interrogation. See
Davis v. United States, 512 U.S. 452 (1994); State v. Little, 203 N.C. App. 684 (2010)
(suspect did not invoke right to counsel by asking detective whether he needed a lawyer);
State v. Dix, 194 N.C. App. 151, 156–57 (2008) (under circumstances, suspect’s
statement “I’m probably gonna have to have a lawyer,” did not invoke right to counsel);
compare State v. Torres, 330 N.C. 517 (1992) (in pre-Davis case, the court held that
when a defendant makes an ambiguous request for counsel, officer must clarify the
defendant’s request before continuing with the interrogation [although this aspect of the
decision has been superseded by Davis, the court’s holding that the defendant invoked
her right to counsel in the circumstances of the case may remain good law—she twice
asked officers whether she needed a lawyer and was advised that she did not need one; in
Dix, 194 N.C. App. at 157, the court noted that the officers in Torres dissuaded the
defendant from having counsel during the interrogation]).
For a discussion of the limits on questioning a defendant who is not in custody and who
is protected by the Sixth Amendment right to counsel, see infra § 14.3C, Confessions in
Violation of Sixth Amendment Right to Counsel.
Invocation of right to silence. If a suspect invokes his or her right to silence, the
interrogation likewise must stop. Some cases suggest that if a suspect invokes the right to
silence only, an officer may later reinitiate interrogation without a break in custody in
some circumstances. See State v. Murphy, 342 N.C. 813 (1996) (finding on facts
presented that reinitiation of interrogation violated defendant’s Fifth Amendment rights;
officers did not “scrupulously honor” defendant’s assertion of right to remain silent); see
also FARB at 579 (discussing issue); 2 LAFAVE CRIMINAL PROCEDURE § 6.9(f), at 939
(finding it “highly questionable” to permit police to reinitiate interrogation about same
crime of defendant who has asserted right to remain silent). The suspect must clearly
invoke the right to remain silent. See State v. Fletcher, 348 N.C. 292 (1998)
(incriminating statements admissible where defendant said that after he got some sleep he
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would lead officers to stolen items, the officers took a break, and then they reinitiated
interrogation). Remaining silent does not necessarily constitute an assertion of the right to
remain silent. In Berghuis v. Thompkins, 560 U.S. 370 (2010), the court held that the
defendant did not unambiguously assert the right to remain silent where he was mostly
silent during two hours and forty-five minutes of interrogation and then made
incriminating statements without affirmatively asserting the right to remain silent. See
also State v. Westmoreland, 314 N.C. 442, 445 (1985) (defendant who remained silent
except for occasional brief denials of involvement “only showed that he did not desire to
respond to specific questions” and did not thereby assert his right to remain silent); State
v. Bordeaux, 207 N.C. App. 645 (2010) (following Berghuis in dictum).
The defendant’s silence itself may be admissible against the defendant where the right is
not expressly invoked and when the defendant was not in custody. See Salinas v. Texas,
570 U.S. 178 (2013) (where defendant was not in custody and voluntarily answered some
questions without invoking his right to silence, his silence in the face of other questions
could be used against him at trial); see also Jessica Smith, Use of a Defendant’s Pre- and
Post-Arrest Silence at Trial, N.C. CRIM. L., UNC SCH. OF GOV’T BLOG (Feb. 13, 2012).
Impeachment exception. A confession that has been suppressed for a Miranda violation,
if otherwise voluntary under the Due Process Clause, may still be used to impeach a
defendant who takes the stand and testifies on his or her own behalf at trial. See Harris v.
New York, 401 U.S. 222 (1971); State v. Bryant, 280 N.C. 551 (1972); State v. Burton,
119 N.C. App. 625 (1995). But see Missouri v. Seibert, 542 U.S. 600 (2004) (court holds
that deliberate withholding of Miranda warnings until after defendant confessed rendered
inadmissible subsequent incriminating statements made after warnings were given; court
expresses disapproval, in footnote 7, of similar tactic to obtain impeachment evidence).
Interrogation of pretrial detainees and prisoners. In Maryland v. Shatzer, 559 U.S. 98
(2010), the U.S. Supreme Court announced that when there is a break in custody for 14
days or more after a defendant has asserted the right to counsel at a custodial
interrogation, an officer may reinitiate custodial interrogation after giving Miranda
warnings and obtaining a waiver of Miranda rights. The Court also ruled in Shatzer that a
return to the general prison population by a prisoner serving his or her sentence may
constitute a break in custody. The Court reasoned that a defendant who returns to the
general prison population regains the degree of control over his or her life that existed
before the interrogation. Thus, the inherently compelling pressures of custodial
interrogation end when the defendant returns to his or her “normal life” in prison.
In Howes v. Fields, 565 U.S. 499 (2012), the U.S. Supreme Court held that incarceration
does not always amount to custody for purposes of Miranda. In Fields, the Court found
that the defendant, an inmate who was serving a prison sentence, was not in custody for
Miranda purposes when he was taken from his cell to a conference room and questioned
for five to seven hours about crimes allegedly committed outside of prison. The Court
reasoned that questioning a person who is already serving a prison sentence does not
generally involve the shock that accompanies arrest, and a person who is already serving
a prison sentence is unlikely to be lured into speaking by a longing for prompt release and
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would be likely to know that law enforcement officers lack the authority to alter his
sentence. The Court took note of factors such as: the defendant was told that he could
leave and go back to his cell whenever he wanted, the conference room door was
sometimes open, and the defendant was not restrained.
In light of Fields, the State could argue that officers may reinitiate interrogation of a
prisoner without giving Miranda warnings and without waiting 14 days as long as the
prisoner is questioned in a noncustodial setting. Thus, defense counsel must be prepared
to show that the defendant was “in custody while in custody,” pointing to factual
circumstances such as the setting in which the interrogation takes place and whether the
defendant was given the opportunity to return to the general population.
Both Shatzer and Fields distinguished inmates who are serving a sentence from those in
pretrial custody. Under the reasoning of these decisions, a pretrial detainee’s return to his
or her jail cell following assertion of his Miranda rights should not constitute a break in
custody permitting reinterrogation; nor should interrogation of a pretrial detainee be
considered noncustodial.
Juvenile warnings. Before interrogating a juvenile, law enforcement officers must inform
the juvenile of his or her rights under G.S. 7B-2101. In addition to the usual Miranda
rights, a juvenile must be advised of the right to have a parent or guardian present during
questioning.
A “juvenile” is any person under eighteen years of age who is not emancipated, married,
or in the military. If the suspect is under eighteen, juvenile rights must be given even
though the suspect may be old enough to be prosecuted in superior court. See State v.
Fincher, 309 N.C. 1 (1983) (seventeen-year-old entitled to statutory juvenile warnings);
State v. Brantley, 129 N.C. App. 725 (1998) (right to statutory warning applies to all
juveniles).
If the juvenile is less than 16 years old, a parent, guardian, custodian, or attorney must be
present when the juvenile is interrogated; otherwise any statement made by the juvenile is
inadmissible against him or her. A parent, guardian, or custodian of the juvenile present
at a juvenile’s interrogation must be advised of the juvenile’s rights but may not waive
any rights on the juvenile’s behalf. See G.S. 7B-2101(b).
The age of a child subjected to police questioning is also relevant to the Miranda custody
analysis. See J.D.B. v. North Carolina, 564 U.S. 261 (2011), discussed supra under
“Requirements of ‘custody’ and ‘interrogation’” in this subsection B.
For a further discussion of interrogation of juveniles, see NORTH CAROLINA JUVENILE
DEFENDER MANUAL § 11.3, Bases for Motions to Suppress Statement or Admission of
Juvenile; § 11.4, Case Law: Motions to Suppress In-Custody Statement of Juvenile (UNC
School of Government, Oct. 2017).
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Warnings to noncitizens. See State v. Herrera, 195 N.C. App. 181 (2009) (violation of
Vienna Convention on Consular Relations, requiring notification to arrested foreign
national of right to have consul of his or her country notified of arrest, does not provide
remedy of suppression of confession), rev’d on other grounds by State v. Ray, 364 N.C.
272 (2010).
C. Confessions in Violation of Sixth Amendment Right to Counsel
Generally, the Sixth Amendment right to counsel attaches at the initial appearance before
a magistrate—that is, when a defendant has been arrested and taken to a magistrate by
law enforcement—and the right exists at any critical stage thereafter, including
interrogation. See Rothgery v. Gillespie County, 554 U.S. 191 (2008). Thus, following the
initial appearance, a defendant has a Sixth Amendment right to have counsel present at
any interrogation by the police, regardless of whether the defendant is in custody. The
Sixth Amendment right to counsel may attach before the initial appearance before a
magistrate, as when the case begins by indictment, which signals the initiation of
adversary criminal proceedings and triggers Sixth Amendment protections. See Rothgery,
554 U.S. at 198 (citing Kirby v. Illinois, 406 U.S. 682 (1972)). The Sixth Amendment
right to counsel is “offense specific”; thus, law-enforcement officers do not violate a
defendant’s Sixth Amendment rights by questioning an in-custody defendant about
crimes unrelated to the charged offense. (Officers still must comply with the Fifth
Amendment for any custodial interrogation. See supra § 14.3B, Miranda Warnings.) If
the person is not in custody, but the Sixth Amendment right to counsel has attached,
police likewise may ask questions about unrelated crimes. See McNeil v. Wisconsin, 501
U.S. 171 (1991); State v. Williams, 209 N.C. App. 441 (2011) (no Sixth Amendment
violation for officers to speak with defendant about robbery and murder where defendant
had not been formally charged with those crimes and was in custody on unrelated
charges).
Under an earlier U.S. Supreme Court decision, Michigan v. Jackson, 475 U.S. 625
(1986), law enforcement officers were prohibited from initiating contact with a defendant
who had exercised his Sixth Amendment rights after they had attached—that is, law
enforcement could not question the defendant about the charges, whether he was in or out
of custody, if the defendant had requested that the court appoint counsel on the charges.
However, in Montejo v. Louisiana, 556 U.S. 778 (2009), the U.S. Supreme Court
overruled Michigan v. Jackson and took a different approach to police questioning after
the attachment of Sixth Amendment protections. Montejo held that officers may initiate
contact with and question a defendant whose Sixth Amendment right has attached, even
if the defendant has requested and received appointed counsel in court, provided that
officers advise the defendant of the right to counsel (essentially, through Miranda-style
warnings) and the defendant knowingly and voluntarily waives that right. (Officers still
may be prohibited from interrogating an in-custody defendant who has asserted his or her
right to counsel under the Fifth Amendment. See supra § 14.3B, Miranda Warnings.)
The “impeachment exception” (discussed supra in § 14.3B, Miranda Warnings) applies
when the defendant’s rights have been violated under the Sixth Amendment. See Kansas
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v. Ventris, 556 U.S. 586 (2009) (defendant’s incriminating statement to a jailhouse
informant, assumed to have been obtained in violation of the defendant’s Sixth
Amendment right to counsel, was admissible on rebuttal to impeach the defendant’s trial
testimony in conflict with the statement).
For a further discussion of the impact of Montejo on police questioning after attachment
of the Sixth Amendment right to counsel. see Robert L. Farb, The United States Supreme
Court Ruling in Montejo v. Louisiana (UNC School of Government, May 30, 2009).
D. Confession as Fruit of Illegal Arrest
If a suspect is illegally seized in violation of his or her Fourth Amendment rights and, as
a result of that seizure, gives a statement, the statement is ordinarily inadmissible as the
“fruit of the poisonous tree.” See Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v.
New York, 442 U.S. 200 (1979); State v. Graves, 135 N.C. App. 216 (1999); see also
supra § 14.2G, “Fruits” of Illegal Search or Arrest.
E. Evidence Derived from Illegal Confession
Involuntary confessions. An “involuntary” confession—that is, a confession obtained in
violation of due process—“taints” any further confession and any evidence obtained as a
result of the confession. See 3 LAFAVE, CRIMINAL PROCEDURE § 9.5(a), at 527–28;
Michigan v. Tucker, 417 U.S. 433 (1974); see also supra § 14.2G, “Fruits” of Illegal
Search or Arrest.
Confessions in violation of Miranda. If a confession is obtained in violation of the
Miranda rule, but is not “involuntary” under the Due Process Clause, the “fruit of the
poisonous tree” principle generally does not apply; failure to administer Miranda
warnings does not automatically create a coercive atmosphere. See Oregon v. Elstad, 470
U.S. 298 (1985). Thus, derivative evidence, such as subsequent statements or physical
evidence, obtained as the result of an unwarned but otherwise voluntary confession is not
barred. See id. (unwarned confession did not taint later warned confession); State v.
Hicks, 333 N.C. 467 (1993) (following Elstad); State v. Goodman, 165 N.C. App. 865
(2004) (where defendant’s statements were obtained in violation of his Miranda rights,
physical evidence, including a body discovered as a result of statements, did not have to
be suppressed); see also 3 LAFAVE, CRIMINAL PROCEDURE § 9.5(a), at 528–33
(discussing inapplicability of the fruit of the poisonous tree doctrine to Miranda
violations).
The U.S. Supreme Court has condemned the “ask first, warn later” two-step interrogation
technique in which law enforcement officers interrogate the defendant without giving
Miranda warnings, obtain a confession, and subsequently give the defendant Miranda
warnings and ask him or her to repeat the confession. See Missouri v. Seibert, 542 U.S.
600 (2004) (confession held inadmissible where detectives deliberately withheld Miranda
warnings, questioned defendant until she confessed to murder, and then, after a 15- to 20-
minute break, gave defendant Miranda warnings and led her to repeat prior confession).
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Cf. Bobby v. Dixon, 565 U.S. 23 (2011) (per curiam) (second, warned confession to
murder not suppressed where defendant denied involvement in murder during unwarned
interrogation and then reversed course and confessed after Miranda warnings).
Confessions in violation of Sixth Amendment right to counsel. See 3 LAFAVE,
CRIMINAL PROCEDURE § 9.5(a), at 532 (taking position that fruit-of-poisonous tree
doctrine may still bar evidence discovered as result of statements taken in violation of
Sixth Amendment right to counsel).
F. Codefendant’s Confession
Generally, one defendant does not have standing to assert constitutional violations in the
taking of another defendant’s confession and cannot move to suppress the other
defendant’s confession on those grounds. See, e.g., Miranda v. Arizona, 384 U.S. 436
(1966) (discussing the privilege against self-incrimination as an individual’s substantive
right). Still, the portions of an accomplice’s confession that are not genuinely self-
inculpatory (for example, “I did it”), but are blame-shifting (for example, “he did it” or
“we did it”), are ordinarily not admissible against the non-confessing defendant. Any
extrajudicial statement, such as a confession to police or to a lay witness, must meet two
basic requirements, discussed below, to be admissible against a criminal defendant. If the
statement does not meet these requirements, the defendant who is being blamed may
make a motion in limine before trial to exclude the statement and object at trial to its
introduction.
First, an out-of-court statement must satisfy the Confrontation Clause of the Sixth
Amendment to the U.S. Constitution, as interpreted in Crawford v. Washington, 541 U.S.
36 (2004), and article I, section 23 of the North Carolina Constitution. An extrajudicial
confession that names or blames an accomplice, particularly if made to the police, will
ordinarily constitute “testimonial” statements and will be barred by the Confrontation
Clause.
Second, the statement must satisfy North Carolina’s hearsay and other evidence rules.
Blame-shifting confessions typically will not fall within the scope of a hearsay exception
under North Carolina’s evidence rules. For a discussion of Confrontation Clause and
hearsay restrictions on the admission of codefendants’ statements, see supra § 6.2E,
Blame-Shifting and Blame-Spreading Confessions.
If the codefendants are tried separately, the State ordinarily will be unable to introduce
the blame-shifting portions of a confession in light of Confrontation Clause and hearsay
restrictions. Thus, the defendant may find it advantageous to move for severance where
the confession of a codefendant will be prejudicial to the defendant’s case. In a joint trial,
if the State wants to offer a codefendant’s confession against that codefendant, the State
must “sanitize” the confession by removing all direct or indirect references to individuals
other than the codefendant who made the confession before the confession may be
admitted into evidence. See Bruton v. United States, 391 U.S. 123 (1968); Gray v.
Maryland, 523 U.S. 185 (1998) (replacing defendant’s name with a blank space or
Ch. 14: Suppression Motions (Apr. 2021)
NC Defender Manual, Vol. 1 Pretrial
“deleted” not sufficient redaction); State v. Gonzalez, 311 N.C. 80 (1984) (error to admit
statement by one codefendant saying “I didn’t rob anyone, they did”); G.S. 15A-
927(c)(1) (codifies Bruton rule). For further discussion of the Bruton rule on redacting
codefendants’ statements at joint trials, see supra § 6.2E, Blame-Shifting and Blame-
Spreading Confessions.
G. Recording of Statements
G.S. 15A-211, enacted in 2007, requires electronic recording of custodial interrogations in
homicide investigations at any place of detention. Effective for offenses committed on or
after December 1, 2011, the statute was expanded to require electronic recording of
custodial interrogations conducted at any place of detention for investigations related to any
Class A, B1, or B2 felony and any Class C felony of rape, sex offense, or assault with a
deadly weapon with intent to kill inflicting serious injury. The amended statute also requires
electronic recording of all custodial interrogations of juveniles in criminal investigations
conducted at any place of detention. The juvenile provision is not limited to specific
offenses. The provision does not define “juvenile” and may apply to any person under the
age of 18. See G.S. 7B-101(14) (defining juvenile for purposes of Juvenile Code as person
under age 18); see also State v. Fincher, 309 N.C. 1 (1983) (applying statutory juvenile
warning requirements to defendants under age 18). For a further discussion of the
legislation, see John Rubin, 2007 Legislation Affecting Criminal Law and Procedure,
ADMINISTRATION OF JUSTICE BULLETIN No. 2008/01, at 5–6 (UNC School of Government,
Jan. 2008), and John Rubin, 2011 Legislation Affecting Criminal Law and Procedure at 35,
no. 63 (UNC School of Government, Dec. 12, 2011).
